Opinion of the Court.

[ 106 S. C. 2. APPEAL AND ERROR-REVIEW-DIRECTED VERDICT.-Where there was sufficient evidence to submit case to the jury, no additional grounds for sustaining a directed verdict can be considered on appeal unless shown that plaintiff could not in any event succeed.

Before SEASE, J., Lexington, November, 1915. Reversed.

Action by Thealus V. Stallings against the Atlantic Life Insurance Company. Judgment for defendant and plaintiff appeals.

Messrs. Wm. W. Hawes and Melton & Sturkie, for appellant, cite: As to application of payment: 96 S. C. 375. Authority of agent: 52 S. C. 228; 55 S. C. 589; 57 S. C. 16; 58 S. C. 201. As to waiver: 51 S. C. 540; 75 S. C. 225; 96 S. C. 375; 95 S. C. 1; 93 S. C. 88. Issue for jury: 80 S. C. 266; 98 S. C. 273. Direction of verdict: 101 S. C. 256. Forfeitures not favored: 97 S. C. 379.

Messrs. C. M. Efird and Lyles & Lyles, for respondent, cite: As to self-serving declarations: 75 S. C. 344. Second-. ary evidence: 79 S. C. 250, 253; 5 Rich. 373. Parol evidence excluded: 27 S.C. 380; 46 S. C. 372, 411; 24 S. C. 128; 102 S. C. 129, 138. No evidence of waiver: 95 S. C. 1.

February 8, 1917.

The opinion of the Court was delivered by MR. Justice FRASER.

This is an action on a policy of life insurance on the life of Philip H. Stallings. Mr. Stallings took out two policies of insurance one on his own life in favor of his wife; the other on the life of his wife. Mr. Stallings went to the agent of the defendant to pay premiums on a policy, and did arrange and pay it. The plaintiff claims that her husband directed the application of the payment to the policy

sued on, and the defendant claims the payment was on the other policy. Mr. Stallings died. The defendant refused payment, and this suit was brought. On the trial of the cause the presiding Judge directed a verdict for the defendant and from this ruling this appeal is taken.

1. There was sufficient evidence to carry the case to the jury. The exceptions practically raise one question, as stated by the appellant in her argument. The reason for

sustaining appellant's contention is that there was 1 sufficient evidence to carry the case to the jury. It would be manifestly unfair for this Court to comment on the facts further than to say there was some evidence to carry the case to the jury.

The respondent gives notice of additional grounds for sustaining the direction of the verdict. These grounds cannot be considered in a case tried by a jury, unless it is

shown thereby that the plaintiff could not in any 2 event succeed. This is not such a case. See Bonham v. Bishop, 23 S. C., page 96. This holding has been reaffirmed in many decisions recorded in subsequent reports.

The judgment is reversed.

9595

WHEELER ET AL. v. CORLEY ET AL.

(91 S. E. 307.)

1. NOTICE QUESTION OF FACT.-Notice is always largely a question of fact, dependent upon all the circumstances of the particular case. 2. MARSHALING ASSETS AND SECURITIES--CONSTRUCTIVE NOTICE-"NOTICE." -"Notice" that land owned by another was also liable on a first mortgage debt, etc., held sufficient to put subsequent mortgagees on inquiry amounting to notice that the other person was a mere surety, so that they were not bona fide creditors without notice, entitled to have the first mortgage satisfied from the sale of the other land under the two fund doctrine.

Before MOORE, J., Saluda, May, 1916. Affirmed.

Suit by George C. Wheeler and others against E. M. Corley and others. From a decree, defendants, Batesburg Cotton Oil Company and another, appeal.

Messrs. Thurmond & Timmerman and Hendersons, for appellants. The latter cite: As to constructive notice of liability of mortgagors: 27 Cyc. 1044; 1 Hilliard Mortgages 275. Subsequent purchaser: 28 S. C. 516; 45 S. C. 18; 18 S. C. 138; 27 Cyc. 1183; 6 N. Y. Sup. Ct. 462. Notice: 67 S. C. 388; 34 S. C. 339; 14 S. C. 142; 20 S. C. 142; 34 S. C. 568; 8 S. C. 302; 2 Pom. Eq. Juris. 605; 23 A. & E Enc. of L. 508; 23 Cyc. 514. Estoppel: 67 S. C. 386; 95 S. C. 338; 100 S. C. 64. Two fund doctrine: 18 S. C. 432.

Mr. W. E. Able, for plaintiff-respondent.

Mr. R. H. Etheredge, for defendant, Trotter, respondent.

Messrs. W. E. Able and B. W. Crouch, for defendants, Long and Corley.

February 9, 1917.

The opinion of the Court was delivered by MR. JUSTICE GAGE.

The questions made by the appeal raised betwixt the defendants, Jones Company, and the Batesburg Cotton Oil Company, on the one side, and the defendants, Corley and Long, on the other side. On these questions the Circuit Court went with Corley and Long, and the oil company has appealed.

The questions arise out of these facts: One Trotter sold Corley 208 acres of land on a credit for $3,000; and to evidence the debt Corley made Trotter a note payable in eight equal yearly installments, and Long signed this note with

Corley; and, to secure the payment of the note, Corley gave Trotter a mortgage on the same land, and Long gave Trotter (in the same instrument) a mortgage on Long's 150 acres of land. In this mortgage it was recited that Corley had the same day bought the land from Trotter; that Long's land was the same on which he resided; that Corley was the fee simple owner of the first tract and Long was like owner of the second tract. Corley had married Long's daughter. Five years thereafter, Corley became indebted to Jones Company in the sum of $4,500 for a lot of goods and merchandise that Jones Company had sold him, and to secure that debt Corley gave to the Jones Company a mortgage on the 208 acres of land. That mortgage is now held by the oil mill. In that mortgage it was recited that the land is the same bought from Trotter about four years before, and that the only incumbrance on it is a mortgage of $1,875 and interest, balance on the purchase price of the land The deed from Trotter to Corley is not fully printed in the case; but it does appear that the instrument stated the purchase price of the land to be $3,000.

The oil company contends that Trotter has two funds out of which to pay himself this balance of the purchase price due to him, to wit, the 208 acres he sold Corley and the 150 acres Long gave him a mortgage on; that the oil company has only one fund to pay itself for the goods sold Corley, to wit, a second mortgage on the 208 acres of land of Corley; that the oil company had no notice of the relationship of Long to the transaction; and the oil company asks that Trotter shall be required to go first on Long's 150 acres, before he resorts to Corley's 208 acres.

The Circuit Court seemed to apply the two fund doctrine to the facts; at least, such application was not denied by the Court, so that no question is now made to sustain or to overthrow that view. We pass no judgment, therefore, upon that question.

21-S.C.-106

Proceeding further, however, the Court found, as a matter of fact and law, that the circumstances of the case carried to Jones notice of the relationship of Long to the transaction betwixt him and Corley, to wit, that Long was only a surety upon Corley's obligation to Trotter. The sole question made by the appeal is from that conclusion, and, while there are eight exceptions, there is only one issue.

So the issue we now take up is: Did the Joneses have notice of the relationship of Corley and Long towards the Trotter debt? That is always largely a question of fact, dependent upon all the circumstances, and one case 1 does not much help the decision of another case. "Notice" is generally a subtle thing, evidenced as often by what was not done as what was done. It sometimes crops out in testimony given to prove it did not exist. It is elusive, and rests in silence as well as in speech. Like a thief in the night, it sometimes goes equipped with weapons of offense, and when detected uses those weapons in alleged self-defense.

2

In the instant case, there were three Jones brothers in interest and to testify, one of them five times; they are all the sons of an old merchant named E. Jones. The Joneses, including the father, had lived and done business at Batesburg for 30 years. The three sons, C. E., A. S., and A. C. Jones, owned the store in the instant case; and they also owned the oil mill; and one of them, A. C. Jones, is cashier of a Batesburg bank; and one of them, C. E. Jones, is secretary and treasurer of the oil mill, and one of them, A. S. Jones, had charge of the store. Corley and Long live in the distant vicinity of Batesburg at Denny's Cross Roads, some 18 miles away, and Corley was postmaster there, and the testimony shows that Corley was often at Batesburg. The likelihood, then, is that the three Joneses had a fairly good notion of credits and relationships in the trading country round about Batesburg; though C. E. Jones alone testified he had no knowledge of Corley's affairs until